Moffitt v. Laurendeau and Moffitt, (1991) 113 N.B.R.(2d) 361 (TD)

• Judge: Paul S. Creaghan, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 04, 1991
• Jurisdiction: New Brunswick
• Citations: (1991), 113 N.B.R.(2d) 361 (TD)

Moffitt v. Laurendeau (1991), 113 N.B.R.(2d) 361 (TD);

    113 R.N.-B.(2e) 361; 285 A.P.R. 361

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Lee Moffitt (plaintiff) v. Marilyn Laurendeau (Hartlen) and Phillip Moffitt (defendants)

(M/C/1490/88)

Indexed As: Moffitt v. Laurendeau and Moffitt

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Paul S. Creaghan, J.

March 4, 1991.

Summary:

The plaintiff motor vehicle passenger brought a negligence action for damages for injuries suffered in a collision between the two defendant drivers.

The New Brunswick Court of Queen's Bench, Trial Division, found the defendant driver of the plaintiff's vehicle negligent and assessed damages accordingly.

Damage Awards - Topic 362

Personal injuries and death - Disease or illness - Chronic pain syndrome - A 29 year old woman suffered soreness in her leg, hip and back following a February 1987 accident - The pain persisted four years later - Able to work only part-time - Diagnosed as having chronic pain syn­drome - Still suffers extensive pain fol­lowing strenuous activity or prolonged periods of sitting or standing - Underwent considerable medical treatment - Pain expected to continue indefinitely - Able to function and live a normal lifestyle, but quality of life diminished by the pain - The New Brunswick Court of Queen's Bench, Trial Division, assessed $25,000 general damages for nonpecuniary loss - See paragraphs 35 to 58, 102 to 107.

Damages - Topic 1452

Special damages - Babysitting expenses - The plaintiff mother's injuries prevented her from working full-time - The plaintiff claimed damages for lost wages based on full-time employment, plus $2,000 for babysitting charges - The New Brunswick Court of Queen's Bench, Trial Division, disallowed the claim, because if the plain­tiff had worked full-time she would have incurred the babysitting expense in any event - See paragraph 65.

Damages - Topic 1453

Special damages - Vocational assessments - An injured plaintiff claimed $1,668.88 in charges by Rehabilitation Services of Canada - The New Brunswick Court of Queen's Bench, Trial Division, stated that "if the primary purpose of these services was to perform a vocational assessment of the plaintiff and a market search ... to determine what employment opportunities were available ... with a view to placing the plaintiff on a job" the charges were recoverable as damages - The court stated that if "the primary purpose ... was to do a vocational assessment and market analysis with a view to marshalling evidence to support the plaintiff's claim for loss of income, then the costs should be taxed as a matter of litigation and are not a proper head of special damage" - See paragraphs 68 to 69.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages - The New Brunswick Court of Queen's Bench, Trial Division, stated that "in the face of such uncertainty compounded by facts which make actuarial contingency assumptions particularly difficult ... consideration for diminution of future earning capacity should be simply included as a component of general damages" - See paragraph 93.

Damages - Topic 1550

General damages - Personal injury - Prospective loss of wages - The plaintiff's estimated earning capacity before an injury (as of the date of trial) was $15,600/year - Her present part-time employment gener­ated $9,600/year - The New Brunswick Court of Queen's Bench, Trial Division, awarded $31,620 for lost future income, being a six year period using a multiplier of 5.27 to the annual loss of $6,000 - See paragraphs 99 to 103.

Damages - Topic 1550.1

General damages - Personal injury - Pre-trial loss of wages - A 29 year old woman had no record of past employment when she was injured - She planned to work full-time and had opportunities to do so - Pain restricted her to part-time employ­ment - Evidence established the woman would have entered the work force at $13,000/year had the injury not occurred - The New Brunswick Court of Queen's Bench, Trial Division, assessed damages for lost income on the basis of $13,000/ year for each year between the injury and trial (yearly 6% increase for inflation), less the income she earned in the same period - See paragraphs 72 to 90.

Damages - Topic 1684

General damages - Evidence - Actuarial evidence - The New Brunswick Court of Queen's Bench, Trial Division, stated that "actuarial opinions are useful in assessing damages even where there is a lack of pre-accident earning experience and there is but a partial disability, as long as the actuarial opinion is based on assumptions grounded in evidence" - See paragraph 92.

Torts - Topic 437

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Traffic control signals - The New Brunswick Court of Queen's Bench, Trial Division, found a motor vehicle driver who went through a red light at an intersection neg­ligent and solely at fault for the resulting accident - See paragraphs 1 to 34.

Cases Noticed:

Cormier v. Fraser (1989), 93 N.B.R.(2d) 91; 238 A.P.R. 91, dist. [para. 58].

Phillips v. Gallagher's Estate (1980), 28 N.B.R.(2d) 559; 63 A.P.R. 559, dist. [para. 58].

Bulmer v. Horsman (1987), 82 N.B.R.(2d) 107; 208 A.P.R. 107 (C.A.), refd to. [para. 92].

Gallman v. Archibald and Heydeman et al. (1989), 93 N.B.R.(2d) 198; 238 A.P.R. 198, refd to. [para. 93].

Tozer v. Pitre et al. (1991), 111 N.B.R.(2d) 361; 277 A.P.R. 361, refd to. [para. 93].

Cyr v. Roman Catholic Bishop et al. (1982), 39 N.B.R.(2d) 361; 103 A.P.R. 361, refd to. [para. 97].

Sprague v. Larocque (1987), 75 N.B.R.(2d) 357; 188 A.P.R. 357, refd to. [para. 97].

Cook v. Benson Lobster Co. Ltd. (1990), 105 N.B.R.(2d) 265; 264 A.P.R. 265, refd to. [para. 97].

Anderson v. Green and Trius Inc. (1990), 108 N.B.R.(2d) 58; 269 A.P.R. 58, refd to. [para. 97].

Counsel:

Michael B. Murphy and William Collette, for the plaintiff;

Christopher Correia and Timothy Collins, for the defendant, Marilyn Laurendeau (Hartlen);

John P. Barry, Q.C., for the defendant, Phillip Moffitt.

This action was heard on February 11-16, 1991, before Paul S. Creaghan, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on March 4, 1991.